Irish High Court rules that HSE not obliged to provide aftercare for Congolese girl

The recent High Court decision of Enguye & Anor v HSE concerns a judicial review of the Health Service Executive's (HSE) decision not to provide aftercare for an asylum seeker who had reached the age of majority. The court held that the Congolese girl in question who is 18 years old, is no longer entitled to care provided by the HSE. The applicant arrived in Ireland as an unaccompanied minor aged 16 and was taken into care subject to section 4 of the Child Care Act 1991.

She attended a secondary school in Dublin where she intended to sit the Leaving Certificate examinations. However, when she turned 18 she was moved to Galway against her wishes and was enrolled in a school there to sit her final examinations. Through the organisation Young People at Risk she was brought back to Dublin and back to her previous secondary school. The organisation Young People at Risk voiced their concern over ongoing funding for the welfare of her.

The HSE maintains that the applicant failed to use the alternative remedy of complaint that is set out in Part 9 of the Health Act 2004, and if there was "anything done or omitted to be done" by the HSE, the applicant could have used that mechanism to lodge a complaint.

The applicant maintained that no care plan was in place for her, and she was not taught social skills or how to manage money. The court held that the applicant was correct to assert that there should have been a care plan in place for her under Statutory Instrument 259/1995 Child Care ( Placement of Children in Residential Care) Regulations 1995. However, Justice Gilligan said that the factual circumstances of the applicant's background meant that "nothing of any significance in the circumstances of this application turns on the failure of the respondent to have in place a care plan."

The applicant had unsuccessfully applied for refugee status, but was granted leave to remain in Ireland on humanitarian grounds. The judge also commented that the girl appeared to be faring relatively well in Ireland. Justice Gilligan held that although the decision to move the applicant to Galway may not have helped the applicant progress, the HSE were acting within the remit of their duties. The judge said that the applicant was seeking a child care provision plan as an adult and there "was no basis in law ... for the reliefs [a child care provision plan] as sought and in the circumstances."

Bulletin readers may recall that in the last edition of the Bulletin there was a piece on aftercare policy and experts warning that "new aftercare policy is still not effective". Recent legislative changes in the area have not enshrined a legal entitlement to aftercare.

Click here to see the judgment in full.

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